BY Biswaraj Patnaik in Puri, December 15, 2017: Naveen Patnaik has made a fresh appeal to Prime Minister Modi yet again for constitution of a tribunal as the Mahanadi water dispute could not be solved by any bilateral method. But strangely, the BJP headed by Modi remains coolly callous, much against the spirit of law.

The river dispute issues in India are commonplace. The laws to resolve the issues do seldom yield results because the central government holds the key. The judiciary has no jurisdiction over river dispute matters.

Article 262 of the Constitution says that all powers of adjudication is vested in the central government in matters of inter State river water or river valleys. The law says that the Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any inter-state dispute or complaint as is referred to in clause (1).

Pursuant to the power conferred by the Constitution (article 262), Parliament has enacted the Inter-State Water Disputes Act of 1956. Any State Government in water dispute with another may request the Central Government to refer the dispute to a tribunal for adjudication.

River water disputes between states have arisen only when construction of major dams happens on an interstate river. Internationally, India shares at least 54 rivers with Bangladesh, but the big dispute came up over the Ganga River only after construction of the Farakka barrage.

As is obvious, the most peaceful way of sharing rivers is never to build large dams. In the 21st Century, dispute-free water management would be possible only by using the available water of our rivers in more prudent, sustainable and environment-friendly way, without putting up large dams and diversion structures or inter-linking rivers.

Although, disputes and tribunals are big subjects relating to sharing surface waters, India’s ‘water lifeline’ today is groundwater. But strangely, the tribunals do not include ‘groundwater’ while calculating and apportioning water use. Strangely, the legal and institutional architecture for water use has no place for the critical stakeholders including the displaced communities or any other affected human victims.

Only very recently, the Union Minister of Water Resources, River Development and Ganga Rejuvenation, Sushri Uma Bharti introduced an Inter-State River Water Disputes Amendment Bill, 2017 in Lok Sabha. She believes it is a “Revolutionary step” towards the resolution of Inter-State River Water Disputes.

The Bill proposes a Single Standing Tribunal (with multiple benches) instead of existing multiple tribunals, which shall consist of one Chairperson, one Vice-Chairperson and not more than six other Members. While the term of office of the Chairperson is five year or till he attains the age of 70 years, whichever is earlier, the term of office of Vice Chairperson and other member of tribunal shall be co-terminus with the adjudication of the water dispute.

The Bill also provides for the appointment of Assessors to provide technical support to the tribunal. They shall be appointed from amongst experts serving in the Central Water engineering Service not below the rank of Chief Engineer. The total time period for adjudication of dispute has been fixed at maximum of four and half years. The decision of the Tribunal shall be final and binding with no requirement of publication in the official Gazette.

Further, the Bill proposes to introduce mechanism to resolve the dispute amicably by negotiations, through a Dispute Resolution Committee (DRC) to be established by the Central Government consisting of relevant experts, before such dispute is referred to the tribunal. It has provisions for a transparent data collection system at the national level for each river basin and for this purpose, an agency to maintain data-bank and information system is to be appointed or authorized by the Central Government. Thus, the new Inter-State River Water Disputes (Amendment) Bill, 2017 is likely to streamline the adjudication process and make the present legal and institutional architecture truly robust.

Inter-state river water disputes are on the rise due to increase in water demands. The Inter State Water Dispute Act, 1956 suffers from many drawbacks. Under the Act, a separate Tribunal has to be established for each Inter State River Water Dispute. Only three out of eight Tribunals have given awards that have been accepted by the warring states, while Tribunals involving Cauvery, Ravi and Beas rivers have existed for over 26 and 30 years without any verdict.

Unfortunately, there is no time limit for adjudication by a Tribunal, or any upper age limit for the Chairman or the Members. Inordinate delay occurs due to vacancy in functionaries’ posts and a ‘no deadline’ situation for publishing the report of the Tribunal. Despite all these short comings in a tribunal system, Odisha has severally placed its appeal with the centre to have the tribunal in place as that is the law. No state can move the Supreme Court for absolutely perfect verdicts in case of lopsided or faulty rulings by a tribunal. The tribunal has to be exhausted anyway.

The much talked-about water-sharing dispute between Odisha and Chhattisgarh over the Mahandi River has reached boiling heat after several Centre-brokered negotiations failed to break the deadlock over the construction of six controversial reservoirs and barrages.

Reportedly, Chhattisgarh is also planning to inter-link some Mahanadi tributaries for better irrigation and water storage during the drier months. If that situation occurs, Odisha will have badly depleted water in its principal reservoir, the Hirakud dam. But Chhattisgarh keeps deceiving the world by saying that the under-construction barrages will have a total capacity of 274 million cubic meter which is much less than the amount of water the sixty-year old Hirakud dam lets flow away due to reduced holding capacity as terrible siltation has mounted over the years.

The Chhattisgarh authorities say further that the Hirakud dam built to hold 5,518 MCM originally, has lost nearly one fifth of its capacity by now. So Odisha need not worry about water being taken away by Chhattisgarh. The excess water would flow away over the dam anyway as waste.

But the truth is the dam is desilted regularly as there is a simple mechanism in place like any other dam. Hence the Chhattisgarh claim is all crap. And that the central government is partial to Chhattisgarh is a fact. All this because the BJP is helpless in Odisha as the ruling BJD is truly popular. The Modi administration believes in making trouble for Odisha by maligning the state to woo people for votes. BJP rules India and Chhattisgarh concurrently and the saffron party considers the regional BJD outfit enemy number one.

The central government does not pay any heed to Odisha’s demand for a cumulative impact study of all projects developed by Chhattisgarh on the flow of water to the Hirakud dam, rather than on individual ones. The callous and horrendously partial BJP government insists on a Central Water Commission finding on who is right and who wrong. The CWC is only a puppet in their hands too ready to condemn Odisha on all its demands.

The BJD has now openly turned the ‘Mahanadi dispute” into a political issue to hit the BJP that aspires to form the next government in Odisha where BJP has virtually no vote base or an acceptable face to ensure a win. The tribunal has to come in place as all other methods of amicable settlement have failed miserably quite some time ago. That is the law of the land which Modiji is flouting merrily. In 2019, his party will pay heavily for this grave blunder. The people of Odisha have realised by now that the prime minister is not fair to the state. Modi is not a prime minister in true spirit. He is one for the BJP-ruled states only.

The tribunal, expected to be a fast track court, is the only option left for the centre. But the prime minister does not seem to understand he is losing respect of the nation. He has been petitioned by all political luminaries of Odisha including some BJP top shots. But nothing much has happened to the effect. Dilip Ray and Bijay Mohapatra have openly condemned the stand adopted by the local saffron leaders.

For all this, Odisha has knocked the doors of the apex court to pass orders for a tribunal in place. Even after this lawful move, if the central government kept putting up false pleas, the Supreme Court may hear the case on merit and pass orders. This view of the apex court has been made clear only two days ago to the greatest shock of the Modi government’s legal warriors. Strange as it may appear, legal super brains like Arun Jaitley and Ravi Shankar Prasad et al seem to be legally dumb and thoroughly useless. They have probably not warned the decision makers once to be on guard lest the court should whip them hard.

As the Mahanadi issue keeps raging, one Congress candidate called Alpesh Thakore has alleged that Prime Minister Narendra Modi dislikes Gujarati food and is crazy to eat Taiwanese mushrooms only which cost Rs 80,000 a piece. Somebody also has spread the rumour that Mr Modi has been eating five pieces of the imported mushroom per day ever since he became chief minister of Gujarat. That’s a whopping sum of public money going into one stomach. Such rumours need to be dismissed by the BJP guys soon to avoid national embarrassment. Modi has also gone low on making personal remarks against the gentleman former prime minister Manmohan Singh, a globally respected economist who had saved India from certain economic disaster in the early 1990s.

It is becoming evident that the BJP is losing the trust of the masses for making tall promises and not being able to keep one. Dilip Ray, Bijay Mohapatra of Odisha can narrate stories better as they know more from Advani, Jashwant Sinha and Arun Shourie who have tales to share at any given point in time.